BGH confirms freedom of testation for gifts to treating doctors
In a recent decision by the German Federal Court of Justice (BGH, ruling of July 3, 2025, Case No. IV ZR 93/24), the freedom to determine the disposition of one’s assets through a will—especially with regards to gifts to medical professionals—is fundamentally upheld. In the specific case, a patient bequeathed a piece of property to their treating family doctor in their will. This was challenged by the potential legal heirs.
Background facts
The central issue in the BGH proceedings was a will in which a patient awarded a property to their family doctor. The legal heirs regarded this inheritance arrangement as invalid and contended, among other things, that it violated the prohibition against accepting gifts for treating doctors according to § 7 of the German Law on Advertising in the Health Sector (HWG) and professional conduct regulations. Therefore, they sought a declaration of the invalidity of the testamentary disposition.
Legal framework and considerations
Freedom of testation as a fundamental principle
The BGH has once again confirmed that freedom of testation is a constitutionally protected right. According to the court, the testator is generally free to dispose of their assets at their own discretion, unless the disposition explicitly violates legal prohibitions or good morals (cf. § 138 BGB).
No automatic invalidity for breach of acceptance prohibition
The court made it clear that a testamentary legacy in favor of a doctor is not automatically invalid merely because the doctor, as the recipient, might potentially be accused of professional misconduct. Although accepting gifts is prohibited for treating doctors under the laws on advertising in the health sector and professional regulations to protect patient interests, these regulations are primarily directed at the practicing doctor and not directly at the patient’s freedom of testation.
Distinction between types of gifts
The BGH differentiated between gifts during life and those upon death. While a violation of professional regulations in the case of a lifetime gift can directly result in invalidity, this is not equally applicable to testamentary dispositions. This is primarily due to the assessment of § 2301 BGB, which entails an independent consideration for gifts on death.
Court’s decision
Ultimately, the BGH rejected the invalidity of the will. There is no sufficient legal basis explicitly prohibiting the testamentary gift to the treating doctor. Although the acceptance of the property still needs to be examined in professional terms, it does not directly render the testamentary disposition void.
Implications for future estate planning
The BGH’s decision highlights the distinction between professional or health law restrictions and general freedom of testation. Gifts from patients to treating doctors are generally possible under current civil law conditions, as long as no specific legal prohibitions intervene. A blanket invalidity of such dispositions cannot be derived from the current ruling.
Wealthy private individuals, companies, and investors intending to plan their succession or asset distribution through wills regularly face complex legal requirements. In the case of complex estates, particularly regarding potential conflicts of interest and intersections with professional law, an individually tailored, legally compliant arrangement can be crucial. For further questions on the drafting of testamentary dispositions and the interactions between freedom of testation, inheritance law, and professional law, you can receive support from our inheritance law advisory services.
